The Freedom of Information Act is getting worse under the Trump administration

Donald Trump speaking at the 2015 Conservative Political Action Conference (CPAC) in National Harbor, Maryland.

Gage Skidmore

More than two years ago, a developer and researcher wants to know what changes the Travel Security Administration (TSA) made to its pat-down procedures at airports around the country. A TSA spokesperson acknowledged changes in a Bloomberg article on Mar. 3, 2017, so days later, Parker Higgins — now Director of Special Projects at Freedom of the Press Foundation — filed a Freedom of Information Act (FOIA) request to learn more.

It’s almost April 2019, and Higgins has yet to receive any documents responsive to his request. Higgins filed it through government transparency website MuckRock, so he’s been automatically following up on his request every month for nearly two years. At times, TSA has given him an estimated date at which his case might be complete. But the dates fly by, with no real updates provided to the requester.

Waiting years for disclosure of records through FOIA is not unusual, and it’s not unique to requesters in the Trump era. In rare cares, requesters can even wait decades — like Monte Finkelstein, who requested records in 1993 that he hoped would add to a history book he was writing — only to give up 20 years later and publish his book without them.

For all its flaws, FOIA remains a critical tool for journalists, activists, and community residents who seek to illuminate government activities. But it’s getting harder.

“On a practical level, it’s becoming more and more difficult for individuals—including journalists—to pursue FOIA requests as individuals,” corroborates First Amendment and FOIA attorney Kevin Goldberg.

FOIA: A vital but broken law

On Dec. 28, 2018, the Department of the Interior filed major proposed changes to the way the agency processes FOIA requests. Critics say if adopted, the new rules could make it easier for the agency to deny FOIA requests, take more time to respond, and place a heavier burden on requesters to state even more explicitly to state what they are looking for.

One proposed change could place a monthly cap on the number of FOIA requests each group or individual can file monthly. The Department of the Interior FOIA Policy Office did not immediately respond to questions about the status of these changes, but public records attorneys are concerned.

“Not processing requests that require research is just silly,” said Adam Marshall — an attorney at Reporters Committee for Freedom of the Press—on the Interior Department’s changes. “Every request requires research.”

“They are depriving the American people of their right to know what the government is doing — they are only going to cause themselves more fights and more litigation,” Nada Culver, senior counsel at The Wilderness Society, told The Hill.

Marshall notes that ex-EPA Administrator Scott Pruitt’s decision not to proactively disclose his official calendar is another example of the way agency brings unnecessary litigation itself.

“There have been so many FOIA requests for his calendar, which is a basic thing that should have been made available online anyway,” he said “The EPA could have saved itself many lawsuits.”

“It’s
definitely accurate to say that both FOIA requests and lawsuits have
risen,” said open government advocate Alex Howard. “And reasons for that
include new technologies like MuckRock, so that it’s easier to file requests.” (The government transparency and news website
facilitates a simpler FOIA process for the public, who can file
requests through the website’s platform, which automates regular
follow-ups on requests.)

“Lawsuits are significant because that’s
generally a tell that affirmative disclosure isn’t where it should be,
and that FOIA officers aren’t releasing information upon request. It’s a
capacity issue, a political will issue, a training issue, and a funding
issue.”

Obama and Trump on transparency: Bad and worse

The
Obama administration promised to be the most transparent in history,
employing lofty rhetoric around disclosure and access. His tone around
public records about open governance differed wildly from Trump’s, but
some transparency advocates argue that Obama did not just fall short of
his goals — parts of his administration worked to ensure his commitments
were never realized at all.

On Barack Obama’s first full day in
office as president, he issued a memo on FOIA, and called on government
agencies to “usher in an era of open government.” He also instructed
Attorney General Eric Holder to release new guidelines that would
reaffirm the administration’s commitment to transparency. (Many
presidents have released memos early in their administrations that
clarify how they intend to handle FOIA.)

Holder’s guidelines made central
the “presumption of disclosure” at the heart of FOIA, and encouraged
agencies to make disclosures of records, and to release them in parts
when releasing in full would be impossible.

This presumption is a
critical principle that has informed understandings of access for
journalists and the public, but the Obama administration also worked to
undermine its own publicly-stated commitment to openness.

Behind the scenes, Obama's administration had lobbied to kill reforms to the Freedom of Information Act in 2014 that would have codified these new standards into law — even through
they had virtually unanimous support in Congress. The Obama Justice
Department opposed the bill , despite the fact that it was based on many
of its own policies, and would have codified the very “presumption of
disclosure” principle that Obama had declared so early into his
administration.

When this became public in 2016 after a FOIA
lawsuit by Freedom of the Press Foundation, the administration was
forced to publicly commit to signing a similar bill that passed in
Congress that year.

Transparency was bad under Obama, but there’s an argument to be made that it’s gotten worse under Trump.

Aside
from the meaningfulness of such commitments, Trump did not release any
memo on how he expected government agencies to handle public records
requests. The Trump administration’s inaction and silence on FOIA speaks
volumes. For him, public records and open governance are certainly not
priorities, seemingly nowhere on his radar.

“I’m not even sure
Trump knows how to spell FOIA,” Goldberg joked. “If you came to him and
told him this is how people get information about you and your
administration, I’m sure he would explode, and staffers would have to
tell him that he can’t do anything about it.”

In some cases,
Trump has silently undone transparency mechanisms, catalyzing an erosion
of accountability principles. The Obama administration participated in an international open governance partnership (OGP) under which
governments like Mexico and South Africa convene to submit plans on how
they plan to increase access and openness.

The Trump
administration’s plan was due to this coalition in 2017, and the U.S. would have been made inactive in the partnership soon had it not submitted any plan. “It would not be unlike withdrawing from the
Paris Accord,” he said. “They are non-binding, but it’s a real
withdrawal from public trust in government.”

“This
partnership was probably some show, but by not participating ourselves,
we lose the moral authority to say other governments should do better," said Goldberg.

Steven Aftergood thinks that top-level leadership around FOIA and openness, while not everything, matters quite a lot.

“By
its nature, FOIA goes against the grain of government bureaucracy, and
there is built-in resistance to its implementation. When leaders endorse
FOIA and embrace transparency as a value, it can mitigate such
resistance—though it does not eliminate it. So even if the Holder memo
and similar issuances were not decisive in their impact, they helped to
nurture a conversation and to promote a culture of compliance with
FOIA.”

“If you don’t at least set the tone, you are certainly
not coming to meet any basic bar you’ve set, so there won’t be any
initiative from lower down,” said Goldberg.

But even more
important than tone and rhetoric, according to Goldberg, is real
commitment to transparency at the highest level. “Every agency has
limited bandwidth and funding, and a lot of discretion over how they
will accomplish their goals, given these limitations. Some prioritize
other things, but some prioritize FOIA. And when the highest of levels
of an agency say, ‘Our FOIA backlog is embarrassing,’ and reallocate
funding and people to get it done,’ that commitment goes a long way.”

And
when it comes to the material reality of transparency under Trump, the
public is experiencing record levels of government non-compliance.

“People
who asked for records under the Freedom of Information Act received
censored files or nothing in 78 percent of 823,222 requests, a record
over the past decade,” according to analysis by the Associated Press..
“When it provided no records, the government said it could find no
information related to the request in a little over half those cases.”

The
Trump administration’s FOIA offices’ record levels of censorship
provides a reliable indicator on how unimportant he finds transparency
to the public.

What's next for FOIA?

Traditional means of obtaining information, such as White House press briefings—in past administrations held every day—are decreasing in frequency. When Trump holds news conferences, he sometimes takes no questions at all,
preventing an opportunity for journalists to push back on the
president’s lies. Even for journalists at large and well-resourced
newsrooms, the tools available to hold power to account are dwindling,
and those that remain may be substantially less useful than in previous
years.

“News organizations are being lied to, and maybe
journalists can’t trust a source, and the government won’t actually tell
them what’s happening,” said Alex Howard. “Suits are rising because
people are lying to journalists and the public, and the government won’t
even offer comment.”

To compensate for a less open government,
in which fewer officials answer fewer questions, some journalists
increasingly rely on public records.

But if FOIA becomes more
difficult and less of a reliably useful tool every year, when each FOIA
request is a massive fight that is increasingly likely to require a
lawsuit, the number of people that can use it to obtain documents
dwindles, too.

Who is FOIA for?

One of the many
things FOIA is such a useful tool for transparency is that anyone can
file a request for any record that exists at all. Whether a senior New
York Times reporter, an early career journalist with a lot to prove, or a
concerned citizen, anyone has the ability to obtain government secrets.

Alex Howard brings up BuzzFeed investigative reporter Jason
Leopold as a prime example of this. “It’s no accident that BuzzFeed
punches way above its weight, according to the organization’s size.
Leopold’s success in prying documents is huge. He’s got the receipts.”

With
the power of a FOIA request, ideally, a young journalist could launch
herself into the world of hard-hitting investigative journalism, and a
citizen could obtain evidence of government corruption.

“Current
political appointees prefer to operate in secrecy and regard the Freedom
of Information Act as a nuisance, not a responsibility,” Jeff Ruch,
executive director of Public Employees for Environmental Responsibility,
said in a statement about the Department of the Interior’s proposed
changes.

According to several of the transparency advocates and
attorneys I spoke to, FOIA will never change meaningfully without an
investment of real resources. To do so, they say, will require a true
commitment from the highest levels, and, critically, funding.

“How
can we improve FOIA and reduce litigation, not by denying requesters
the right to sue, but by making it less necessary? How can we build a
FOIA that actually works? More staffing, and more training,” emphasized
Morisy.

Goldberg says fundamental changes would require “a shift
in leadership, a shift in tone and attitude, and critically an increase
in funding. “We need to think smarter about FOIA, and this
administration, like several prior, has not even begun to think about
what that would look like meaningfully.”

Correction: A previous version of this article confused watchdog organization Project on Government Oversight (POGO) with international openness partnership the Open Government Partnership (OGP).